Would Scalia Strike Down 2257 on Fourth Amendment Grounds?

LOS ANGELES—A Salon article published today outlines the extent to which Supreme Court Justice Antonin Scalia, for whom there is generally no love lost among the perennially liberal, actually finds common ground with left-leaning SCOTUS colleagues when it comes to a “raft” of Fourth Amendment cases.

The Fourth Amendment, for those who have forgotten, reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Reading through the types of cases in which the supposed ideological extremes on the Court have worked together to affirm the cherished values enshrined in that particular amendment to the U.S. Constitution, one can’t help but think that the old codger on the court would have a hard time justifying any support for the warrantless searches allowed as part of the regulations that make up 18 USC §2257, the federal labeling and record keeping statute that permits designated officials to enter a private business or residence without notice, requiring the "records custodian" to be at the location for up to 20 hours a week.

“The most recent example of this [ideological breakdown],” writes Jillian Rayfield for Salon, “is the 5-4 decision that came down on Monday, in which the Court upheld a Maryland law allowing police officers to take DNA samples of arrestees without a warrant, for the purposes of investigating crimes unrelated to the arrest. Scalia dissented with an opinion joined by Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg.”

There are other overreach-type cases (mostly involving law enforcement) illustrated in the article, including one in which the Court held “that a police officer’s use of a drug-sniffing dog in the area surrounding a home constitutes a Fourth Amendment ‘search’ and so generally requires a warrant,” but not all legal observers think Scalia has an expansively inner-leftist bent when it comes to the Fourth Amendment.

“Justin Levitt” writes Rayfield, “an associate professor of constitutional law and criminal procedure at Loyola Law School in California, told Salon that he’d be wary of describing Scalia as liberal on Fourth Amendment issues, and is not surprised that Scalia has been ruling this way in recent cases involving the protection of an individual’s body and home.”

Levitt added, “It’s not uniform. He doesn’t have a very expansive view of the Fourth Amendment across the board… it’s a question of, ‘does it invade the privacy of the home, and would the framers have required a warrant.’”

Taking precisely that perspective into account, however, one might realistically imagine Scalia looking askance at the warrantless searches allowed by 2257, especially in light of the fact that the searches are not predicated on probable cause and could very well take place in a private residence, considering the number of people who run adult businesses out of their home.

Of course, 2257 does also involve sex—and more to the point, it supposedly addresses issues related to underage performers appearing in adult productions (a claim hotly contested by the plaintiffs in Free Speech Coalition v Holder)—a subject about which the garrulous judge has traditionally taken a rather stark view, to say the least.

“What a massive disruption of the current social order the overruling of Bowers entails,” wrote Scalia in his dissenting opinion in Lawrence v Texas, the 2003 case that overturned Texas’ anti-sodomy laws.

AVN added at the time, “Noting that today's ruling rejected the concept of governing by moral majority. Scalia suggests that bigamy, same sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity laws might be deemed unconstitutional using the reasoning set forth by Kennedy today.”

As absolute a position as that appears to be, the warrantless search aspect of 2257 might very well mitigate Scalia’s hardwired view regarding the constitutionality of suppressing sexual behavior, which he obviously believes does not rise to the level of protected speech, especially if he takes seriously the fact that the current 2257 regime does not require that law enforcement have probable cause to believe a crime has been committed before commencing with a search of either a business or private residence.

Of course, this theoretical evaluation of a Scalia position with respect to 2257 would only be tested if the current (or future) case is appealed to the High Court and the case is accepted, and that scenario, though quite possible, is a long way off.